The Supreme Court Decides to See No Evil Abroad

April 18 (Bloomberg) -- Can U.S. courts sit in judgment of
foreigners who commit genocide or torture against foreigners
abroad? From 1980 until now, the answer was yes, provided the
human-rights violator set foot on U.S. soil or had substantial
American contacts. But the Supreme Court, in Kiobel v. Royal
Dutch Petroleum, has all but closed the doors to international
human-rights litigation in our courts. And in a perverse twist,
it relied on principles of international law to do so.

Civil trials in the U.S. of those who have committed the
worst violations of human rights abroad have become relative
common over the years, but legally speaking, they have rested on
a slender reed. When the global human-rights movement gained
traction in the late 1970s, American advocates aspired to do
more than shame the worst violators. They hoped to get the
credibility and moral authority of the U.S. courts behind their
efforts.

The key was an obscure 1789 law called the Alien Tort
Statute, which gave the federal courts jurisdiction when a
noncitizen sued for an injury committed “in violation of the law
of nations.” In 1980, Judge Irving Kaufman of the U.S. Court of
Appeals for the Second Circuit -- who first became famous for
sentencing the Soviet spy Julius Rosenberg to death -- held that
the tort statute allowed Paraguayan expatriates living in the
U.S. to sue another Paraguayan who happened to have visited New
York for torturing and killing their son in Paraguay.

Political Value

Supporters hailed the 1980 decision, Filartiga v. Pena-Irala, as the Brown v. Board of Education of international
human-rights law. Later lawsuits against such notorious human-rights violators as the Serbian warlord Radovan Karadzic
underscored the political value of suing foreigners
domestically. Several major corporations have found themselves
on the defensive, including Chevron Corp., Coca-Cola Co. and
Yahoo! Inc. Although these weren’t criminal trials, and any
monetary damages were almost always impossible to obtain, the
trials cast a harsh light on torture and genocide. Even people
who don’t much care for the U.S. tend to believe that its courts
do a thorough and honest job of fact-finding.

Establishing the facts of a human-rights violation in a
U.S. court is therefore much more powerful as a tool of
condemnation than mere declarations or findings by international
bodies that might be politically biased, incompetent or both.

The critics of these domestic trials attack them as legally
absurd and diplomatically unwise interventions in foreign
affairs. In 2004, in a case involving a Mexican doctor accused
of helping kill a U.S. drug-enforcement agent, the Supreme Court
came close to shutting them down, but they were saved in a
complicated decision by Justice David Souter. (Many observers
thought that the court -- then in the long, slow process of
requiring the George W. Bush administration to extend
international legal rights to detainees at Guantanamo Bay, Cuba
-- may have thought that the time wasn’t quite right to deal a
symbolic blow to human-rights advocates.)

They’re finished after the court’s latest ruling, in a case
that alleged the involvement of two Shell units in torture in
Nigeria. We now learn that international law can be not only a
shield for those captured or tortured but also a sword for
avoiding legal obligations. Chief Justice John Roberts, in an
opinion joined by the three other conservatives and Justice
Anthony Kennedy, relied on a general principle of international
law to end litigation under the Alien Tort Statute: the
principle of extraterritoriality.

Congress’s Say

That principle, as applied in U.S. law, embodies a
presumption that our laws don’t reach to conduct in the
territory of the foreign sovereign unless Congress expressly
says so. The idea is that what happens in other countries is
ordinarily their business, not ours. There are exceptions, such
as the Protect Act of 2003, which makes it a U.S. crime for
anyone (including a foreigner) to have sex with someone underage
(including a foreigner) outside the U.S. But that infringement
on the principle of extraterritoriality was clearly intended by
Congress.

According to Roberts, the Alien Tort Statute shouldn’t be
read to apply to conduct occurring abroad unless the law so
specifies.

It must be said that Roberts’s opinion has considerable
strengths. The historical origins of the law are shrouded in
mystery, and judges have often called it a “legal Lohengrin.” It
was probably intended to protect foreign diplomats living in the
U.S. Even if that is untrue, it is certainly accurate that
before 1980 it was never used as a tool of international human
rights. There is a good reason that sovereign nations like the
principle of extraterritoriality: It embodies the values of
mutual respect, noninterference and sovereign equality.

Yet, there is also something tragic about Roberts’s
opinion, which rejects judge-made law that has come to function
as an important part of the moral project of enforcing human
rights globally. What does it say about our moral responsibility
to protect those abroad from genocide if we can’t even sue the
perpetrators at home for fear of interfering with their
countries’ sovereign rights?

As Justice Stephen Breyer put it in an opinion concurring
in the judgment but not the court’s reasoning -- and joined by
the court’s three other liberals -- if the torturer has
substantial contacts here, and we have an important national
interest in keeping our country from becoming a harbor for
torturers, why not subject the “enemy of mankind” to civil
liability? Behind that reasoning is the recognition that the
most basic human rights are actually special -- and are of
greater importance than the legal nicety of treating all
governments the same, no matter how evil they might be.

A final route exists for human-rights litigators: The
Torture Victim Protection Act of 1991, which allows domestic
suits against foreign individuals (not organizations) who have
engaged in official torture. Justice Kennedy wrote a separate
concurrence to point out that this statute still exists. Yet the
silence of the other conservatives and Kennedy on that law
speaks volumes: They don’t want to invite more human-rights
lawsuits. The responsibility to preserve our responsibility to
protect now lies squarely with Congress. I wish that made me
feel more confident than it does.

(Noah Feldman, a law professor at Harvard University and
the author of the forthcoming “Cool War: The Future of Global
Competition,” is a Bloomberg View columnist. Follow him on
Twitter. The opinions expressed are his own.)